Whether the Adjudicating Authority(NCLT) can grant liberty to restore the petition which was finally disposed of as withdrawn – AVANT Garde Clean Room & Engg. Solutions Pvt. Ltd. Vs. HLL Biotech Ltd. – NCLT Kochi Bench
November 24, 2022
NCLT held that in the IBC 2016 or in NCLT Rules 2016 there is no provision available to grant liberty to restore the finally disposed of petition as withdrawn. Not only in IBC, 2016 there is no such provision available in any other Act, In this situation it is better to see the provisions available in Code of Civil Procedure,1908. Of course, CPC is not applicable to the proceedings under IBC, 2016 but an analogy enshrined in Code of Civil Procedure 1908 can be applied. Further, it held that there is no legal backing to grant liberty to restore the petition which was finally disposed of as withdrawn. Further the default of payment of settlement agreement do not come under the default of operational debt, this also might be the reason to refuse to grant main relief and granted only an alternative prayer of the memo. When there is no specific order granting liberty to approach this Authority (NCLT), for restoration of dismissed petition, this application cannot be entertained. It is established position of law that if any relief claimed in the petition/memo, which is not expressly granted by the order, shall be deemed to have been refused.